Marathon County Office and Technical Employees, Local 2492-E, AFSCME,
AFL-CIO,
hereinafter the Union, requested that the Wisconsin Employment Relations Commission
appoint a staff arbitrator to hear and decide the instant disputes between the Union
and Marathon County, hereinafter the County, in accordance with the grievance and
arbitration procedures contained in the parties' labor agreement. The County
subsequently concurred in the request and the undersigned was designated to
arbitrate in the disputes. (1) A hearing was
held before the undersigned on August
15, 1991 in Wausau, Wisconsin. There was no stenographic transcript made of the
hearing and both parties submitted post-hearing briefs in the matters by October 7,
1991. Based upon the evidence and the arguments of the parties, the undersigned
makes and issues the following Award.

ISSUES

The parties stipulated to the following statement of the first issue:

Did the County violate the respective collective bargaining
agreements when it
denied sick leave usage for the following instances of family illness.

The Union would also raise the following as an additional issue to be decided:

Is the current County Policy regarding the usage of sick leave for
instances of
illness in the employees' family a violation of the respective collective bargaining
agreements of Locals 2492, 2492A and 2492E.

If so, what is the proper remedy?

The County objects to any consideration of the additional issue.

CONTRACT PROVISIONS

The following provisions of the parties' 1989-1990 Agreement are cited:

ARTICLE 2 - MANAGEMENT RIGHTS

The County possesses the sole right to operate the department
and all
management rights repose in it, but such rights must be exercised consistently with
the other provisions of this contract. These rights include, but are not limited
to the following:

A. To direct all operations of the
Social Services Department;

B. To establish reasonable work rules;

. . .

H. To introduce new or improved
methods or facilities;

I. To manage and direct the working
force, to make assignments of jobs,
to determine the size and composition of the work force, to determine
the work to be performed by employees, and to determine the competence
and qualifications of employees;

J. To change existing methods or
facilities;

K. To determine the methods, means
and personnel by which operations are
to be conducted;

. . .

ARTICLE 3 - GRIEVANCE PROCEDURE

. . .

B. Arbitration:

. . .

5. Decision of the
Arbitrator: The decision of the Arbitrator shall be
limited to the subject matter of the grievance and shall be restricted
solely to interpretation of the contract in the area where the alleged
breach occurred. The Arbitrator shall not modify, add to or delete
from the express terms of the Agreement.

. . .

ARTICLE 14 - SICK LEAVE

A. Rate of Earning: Every employee shall be
entitled to accumulate a
total of not to exceed nine hundred and sixty (960) hours of sick leave. Employees
hired after June 1, 1977, shall earn sick leave at the rate of eight (8) hours per
month (3.6923 hours biweekly) for the first five (5) years of employment and twelve
(12) hours per month (5.5385 hours biweekly) thereafter. Employees hired prior to
June 1, 1977, shall earn sick leave at the rate of twelve (12) hours per month
(5.5385 hours biweekly). In order to qualify for sick leave, an employee or his/her
representative must report that the employee is sick no later than one-half (1/2)
hour after the earliest time which the employee is scheduled to report for work
except in case of emergency or when the employer is fully aware the employee will
be on sick leave for an extended period.

. . .

C. Personal Use: Except as provided in "D"
Family Illness, sick leave may
only be used for illness or disability of the employee or for medical and dental
appointments of any employee. Employees will make every attempt to schedule medical
and dental appointments outside of normal working hours. However, if this is not
possible and they must be scheduled during the normal work day every attempt will
be made to schedule the appointment near the beginning or end of the normal work day
or near the lunch hour.

D. Family Illness: Employees will be allowed
to use sick leave in case
of serious illness in the immediate family where the immediate family member
requires the constant attention of the employee. The Director may require that the
employee make other arrangements for the ill family member within five (5) working
days. Immediate family is defined as the employee's spouse, children, parents, or
members of the employee's household.

. . .

ARTICLE 29 - ENTIRE MEMORANDUM OF
AGREEMENT

The foregoing constitutes the entire memorandum of agreement
between the parties
by which the parties intend to be bound, and the verbal statements shall supersede
any of these provisions. The County agrees that it will not enter into any other
agreement, written or verbal, with the employees covered by this Agreement, other
than through the Union. This Agreement is subject to amendment, alteration or
addition only by subsequent written agreement between and executed by the County and
the Union where mutually agreeable. The waiver of any breach, term or condition of
this Agreement by either party shall not constitute a precedent in the future
enforcement of all of its terms and conditions.

. . .

BACKGROUND

There are three grievants in these cases involving five separate instances
where they were denied the use of sick leave under the Family Illness provision in
the Agreement.

The Grievant, Cindy Myszka, is a Child Support Specialist in the County's
Department of Social Services.

Myszka's husband was having problems with his knee and was advised to have
arthroscopic surgery on the knee. The surgery was done on an outpatient basis on
January 23, 1991 and the husband was given general anesthesia for the operation.
He went into the hospital at approximately 7:30 a.m., was in the recovery room at
approximately 12:30 p.m., and was discharged at approximately 2:15 p.m. Myszka
drove her husband to the hospital, waited for him, and then drove him home and took
care of him the rest of that day. The husband had to keep the leg elevated with ice
on it and Myszka brought him the ice pack, helped him to the bathroom and fixed his
meal for him.

Myszka had requested to use sick leave under the Family Illness provision and
the request was denied by her supervisor and by the Director. Myszka then used
vacation time to take the day off to accompany and care for her husband. A
grievance was filed over the denial and was denied.

The Grievant in these cases, Deborah Kurth, is a Volunteer Coordinator in the
Department of Social Services.

In the September 26, 1990 instance, Kurth was called at work by her eight year
old son's babysitter, Kurth's mother, and informed that her son's ear was bothering
him. The boy had not felt well the night before or that morning. When called by
her mother, Kurth left work and took her son to the doctor where he was diagnosed
as having an ear infection and treated with antibiotics. Kurth requested to use
sick leave under the Family Illness provision. The request was denied and she used
four hours of personal leave time instead. A grievance was filed based on the
denial of her request to use sick leave under the Family Illness provision.

On December 19, 1990, Kurth's son did not feel well that morning and did not
go to school. The boy's babysitter called Kurth at work that morning and she left
work to take the boy to the doctor. The boy was not given any medication for pain
that day. After taking the boy to the doctor, Kurth returned to work. Kurth
requested to use two hours of sick leave under the Family Illness leave provision.
Her request was denied and she used two hours of vacation time instead. A grievance
was filed based on the denial of her request to use sick leave. In discussing her
grievances, Kurth provided the County with a letter from her son's doctor dated
March 15, 1991 that stated, "Christopher's illness on September 24, 1990 and
December 19, 1990 were cause for concern."

The Grievant in these cases, Renee Gibson, is an Economic Support Specialist
in the County's Department of Social Services. Gibson was a single parent at the
time of the occurrences in issue.

On September 24, 1990, Gibson's eleven year old daughter complained of
feeling
achy, sore throat and fever and Gibson requested to use sick leave to take her to
the doctor that afternoon. Her request was denied and she took two hours of
vacation. The doctor diagnosed the child's problem as bronchitis and sinusitis and
put her on medication. The denial of Gibson's request to use sick leave under the
family illness provision was grieved and the grievance was denied.

In October of 1990, Gibson's daughter was still ill and on medication. The
daughter complained of dizziness and severe headaches and Gibson was concerned that
her daughter was experiencing an adverse reaction to the medication. She requested
to use an hour of sick leave to take her daughter to the doctor. That request was
denied and the denial was grieved and subsequently the request was granted in May
of 1991 upon review of the grievances.

On January 21, 1991 Gibson's daughter showed symptoms of fever, sore throat,
aches and ringing in her ears, similar to her earlier symptoms in September of 1990.
Gibson made an appointment with the doctor and requested to use sick leave for 1 1/2
hours under the family illness provision. The request was denied and she used
vacation time to take her daughter to the doctor. The child was diagnosed as having
a viral infection. Gibson again grieved the denial of her request and that
grievance was denied.

In the course of discussing her grievance, Gibson provided the County with a
copy of a letter from her daughter's doctor which stated as follows:

March 15, 1991

RE: Margie Gibson

To Whom It May Concern

Margie Gibson is the mother of a patient of mine, Nicole Galante,
and she had
to bring Nicole to the office for sick visits. Nicole was seen by me on
September 24, 1990, October 1, 1990, and January 21, 1991. All these three visits
were sick visits. She had had bronchitis and sinusitis at one occasion, and on the
next occasion child had severe headaches and dizziness and was extensively
evaluated. On the last visit she had a severe viral infection. I think mother
needed to get off work to bring the child to the office, and she should be allowed
to be with her child when the child is sick. If there are any questions, please do
not hesitate to give me a call.

Sincerely,

Madhu V. Luthra, M.D.

Department of Pediatrics

The County has a written policy on the use of sick leave for "family illness"
which it placed in effect early in September of 1989 prior to the parties executing
their 1989-1990 Agreement. The events leading up to the implementation of that
policy are set forth in detail in Arbitrator Burns' prior award involving these same
parties on the same issue, (5) and need not be
repeated. Arbitrator Burns issued her
award on January 7, 1991 and after receiving the award the County modified its
policy regarding family illness leave. The modified policy was placed in effect on
March 4, 1991 and the instant grievances were subsequently considered in light of
the changed policy and were denied.

Myszka's grievance was denied pursuant to the following letter of April 22,
1991 from Karger:

Dear Mr. Salamone:

Re: Grievance No. 2-91 (Myszka)

On April 19, 1991 a meeting was held to review the matter cited
above. The
dispute involves a request for eight (8) hours of sick leave on January 23, 1991.
On this day, Cindy Myszka's husband had knee surgery. She transported him to and
from the hospital; once home she helped him keep his leg elevated, kept ice on the
injury, and generally attended to his needs. The grievance cites Article 14(d)
Family Illness as the area in the labor agreement of alleged violation. That
section read as follows:

Employees will be allowed to use sick leave
in the case of serious illness
in the immediate family where the constant attention of the employee.
(Emphasis
Added)

In making the decision to deny the use of sick leave, the
Department of Social
Services considered the nature of the illness and referred to the guidelines
presented in the Statement Regarding Use of Sick Leave for Family Illness. In
those
guidelines, it states specifically that a routine outpatient surgery is not an
appropriate use of sick leave. The statement goes on to indicate that a scheduled
surgery of a life threatening nature would properly warrant the constant attention
of the employee and thus would represent an appropriate use of sick leave.

During the grievance meeting, Ms. Myszka pointed to another
employee (Sherry
Szymanski) who was allowed to use sick leave during a day when her husband had in-patient
back surgery. While she is probably right that the back surgery was not
life threatening, it does reflect a more complicated situation than the arthroscopic
knee surgery in this case.

The County has recently been involved in two (2) grievance
arbitrations
involving family illness sick leave. One involved a ten (10) month old baby with
persistent vomiting and the other involved a twelve (12) year old boy who
experienced severe knee pain and was seen by a physician. In the first case, the
arbitrator (Coleen Burns) ruled in favor of the grievant and in the second in favor
of the County. This case, while not identical, is more reflective of the second
case in which the employee (D. Kurth) was not provided family illness sick leave to
take her son to see the physician.

In conclusion, I find that the request to use sick leave on January
23, 1991 was
appropriately denied. Thus, Grievance No. 2-91 (Myszka) is denied.

Sincerely,

Brad Karger

Personnel
Director

Kurth's grievances were denied pursuant to the following letter of April 22,
1991 from Karger:

Dear Mr. Salamone:

Re: Grievance No. 5-90 (Kurth) and No. 1-91 (Kurth)

On April 19, 1991 a meeting was held to review the matters cited
above. The
dispute involves two hours on February 19, 1991 (sic) and four hours on
September 26, 1990. On both of these days, Deborah Kurth's eight year old son had
an ear infection and the time was used to transport and accompany him on a visit to
his physician. Ms. Kurth requested the use of sick leave for the time and that
request was denied. (She was allowed to use vacation for the time.)

The grievance alleges a violation of Article 14(d)
Family Illness in the labor
agreement. This section reads as follows:

Employees will be allowed to use sick leave
in the case of a serious illness
in the immediate family where the immediate family member requires the constant
attention of the employe. (Emphasis Added)

In reaching the decision to deny the use of sick leave for these
events, the
Department of Social Services considered the nature of the family illness and relied
upon the Statement Regarding Use of Sick Leave for Family Illness. This
statement
defines the term "serious illness" as circumstances in which a family member (sic)
poor health, sickness, or disease gives rise to concern or which is a dangerous in
nature.

During the April 19, 1991 grievance meeting, the Union
presented a note from Dr.
Robert Kaupie which indicated that "Christopher's illness on February 26, 1990 (sic)
and December 19, 1990 were cause for concern." The date on that note from the
physician was March 15, 1991.

Ms. Kurth was the grievant on another family illness dispute
which was decided
in February of 1991. In her award, Arbitrator Coleen Burns found that the County
is contractually entitled to consider the nature of the family members illness when
determining whether or not to grant an employee request for family illness leave.
Further, the Arbitrator found that the son's injury did not constitute a serious
illness and thus the grievance was denied. In another family illness dispute
involving a different Marathon County bargaining unit, Arbitrator Burns awarded in
favor of the grievant. That case involved a ten (10) month old baby who had
experienced persistent vomiting. In determining that this particular health problem
met the standard of a "serious illness," the Arbitrator considered the Union's
argument that the vomiting could be symptomatic of a bowel obstruction.
"Additionally, a ten month old child with persistent vomiting may quickly become
dehydrated. If not treated promptly, such dehydration may have serious health
consequences" reasoned the Arbitrator.

In arriving at a decision of this issue one needs to consider the
nature of the
illness (ear infection) and the old age of he child (eight years old). At the
grievance meeting, Ms. Kurth indicated that the child was in severe pain but it
seems evident that the illness was a rather routine childhood health matter. The
note from Dr. Kaupie does not provide much support for the argument that his is in
fact a serious illness. The awards of Arbitrator Burns suggests that each illness/
injury needs to be considered in relation to its possible health consequences. A
simple one line note written months after the fact will not suffice.

In conclusion, I find that the requests for sick leave on September
26, 1990 and
February 19, 1991 (sic) were appropriately denied and that there was no violation
of the labor agreement. Thus, Grievance No. 5-90 (Kurth) and No. 1-91 (Kurth) are
denied.

Sincerely,

Brad Karger

Personnel
Director

Gibson's grievances were denied pursuant to the following letter of May 8,
1991 from Karger:

Dear Mr. Salamone:

Re: Grievances No. 4-90 and 3-91 (Gibson)

On April 19, 1991, a meeting was held to review the grievances
cited above. The
dispute involves the use of sick leave by Renee Gibson for family illnesses. The
illnesses involved Ms. Gibson's nine year old daughter who was accompanied to the
Wausau Medical Center as follows:

DateNature of
IllnessWork Hours Involved

9/24/90 Bronchitis and sinusitis 2 hours

10/1/90 Headaches and dizziness 1
hour

1/21/91 Visual infection 1 1/2 hours

The grievance forms cite Article 14 (D) Family Illness as the area
of alleged
violation. The section of the labor agreement read as follows:

Employees will be allowed to use sick leave
in the case of a serious illness
in the immediate family where the immediate family member requires the constant
attention of the employee. (Emphasis Added)

In making the decision to deny the use of sick leave, the
Department of Social
Services referred to the Statement Regarding Use of Sick Leave for Family Illness.
This policy defines the term "serious illness" as circumstances in which "a family
member (sic) poor health, sickness or disease gives rise to concern or which is
dangerous in nature." That policy statement goes on to exclude sick leave usage for
uncomplicated matters such as sore throat or flu symptoms and indicates that the
negotiated language is intended to allow the employee off without a loss in pay
where the illness is of a serious health nature.

During the grievance meeting, the union presented a letter from
Dr. Madhu V.
Luthra. That letter confirmed the fact that Ms. Gibson had accompanied her daughter
(Nicole) to see him on the days in question and went on to state that Renee should
be allowed to be with her child when the child is sick.

In arriving at a decision on this matter, one needs to consider the
nature of
the illnesses and the age of the child. Dr. Luthra's comment that he believes Renee
should be allowed to be with her child when she is sick is irrelevant to this
grievance in that the issue is not whether she was provided the time off or not, but
rather whether the use of sick leave was appropriate under the terms of the labor
agreement. In reviewing the information before me, I believe that the illnesses
occurring on September 24, 1990 and January 21, 1991 are of routine childhood health
matters and as such the use of sick leave is not appropriate. Thus, the grievances
are denied to the extent that they involve these two days. On October 1, 1990 when
the child is accompanied to her personal physician with symptoms of dizziness and
severe headaches which were suspected to involve an adverse reaction to prescribed
medications, I believe that this illness does meet the criteria of a serious health
illness. Thus, I have asked that the Department of Social Services to modify their
records to permit the use of sick leave on that particular day.

Sincerely,

Brad Karger

Personnel
Director

The County's modified family illness policy is set forth below, with the
modifications indicated:

STATEMENT REGARDING USE OF SICK LEAVE
FOR

FAMILY ILLNESS

A number of questions and interpretations have arisen regarding
the use of sick
leave under this language. The following principles are to be used by Department
Heads in interpreting this language and allowing the use of sick leave for family
illness.

A. This provision is intended to allow
employees at work to receive time
off with use of sick leave in the event of an emergency where there is
no other family member available to address or handle an emergency
situation involving a member of the family. This is the reason for the
example used in the language of a "child breaks arm on school
playground." Thus, sick leave is to be used only for those instances
where the employee is the only family member available to address the
situation or provide constant attention to the family member.

B. Sick leave is only to
may be used in cases of serious illness. The
term "serious illness", has been defined as circumstances in which a
family member's poor health, sickness or disease gives rise to concern
or which is dangerous in nature. Again, the example of child breaking
an arm shows the seriousness of the illness. The sick leave usage is
not to be allowed for uncomplicated matters such as sore throat or flu
symptoms. The language is intended to allow the employee off without
loss of pay in those instances where constant attention is required and
the matter is of a serious health nature.

C. A number of questions have arisen
regarding the use of sick leave for
routine scheduled medical or dental appointments. Thus, the parties
have negotiated clear language prohibiting the use of this provision
for routine medical or dental appointments that are scheduled in
advance. This provision also prohibits the use of sick leave for
family illness which involves scheduled routine surgery such as routine
out-patient surgery. However, the interpretation has allowed the use
of family illness in those instances where the scheduled surgery is of
a life threatening nature such as heart transplant or heart bypass
surgery and in those instances it is determined that the surgery
warrants the constant attention of the employee.

The following are actual examples where the use of family illness
sick leave is
appropriate:

1. Attend wife in hospital for birth of
child.

2. Pick up ill child at baby-sitter to
take to doctor.

3. Pick up ill child at school to take to
doctor.

4. Travel to hospital to attend ill child
that was transported from school
for emergency treatment.

5. Incident where child contracted
serious illness following birth.

6. Transport son to doctor for
emergency due to eye injury.

7. Husband injured at work and
employee required to pick up husband from
emergency room to take home.

8. Take daughter to doctor after
injuring hand at school.

9. Attend to daughter in intensive care
at hospital due to car accident.

10. Attend to husband who had chain
saw accident and was being transported
to Wausau Hospital.

11. Attend to a child who became ill at
the day care center and child care
center requires removal of child.

12. Attend to baby who is
experiencing persistent vomiting and requires
doctor's attention.

The following incidents should not receive family illness sick
leave:

1. Daughter is sick and husband and
wife are sharing time at home with
child or husband is only able to stay home during mornings.

2. Transport son to doctor to recheck
eye after eye injury or routine
check.

3. Take daughter to doctor to have
stitches removed.

4. Take daughter to dentist for tooth
filling.

5. Both wife and child have flu
symptoms and no one is able to care for
child at home.

6. Wife being discharged from
hospital and requires spouse to transport
home.

8. Take child to doctor after
suffering known injury but continuing to
attend school.

POSITIONS OF THE PARTIES

Union:

With regard to the issue of whether the County's present policy regarding the
use of sick leave for family illness violates the provisions of the Agreement, the
Union asserts that there have been two grievance arbitration proceedings in the last
year involving nine grievances and all have dealt with alleged breaches of the
family illness leave language in the agreements covering the bargaining units
represented by the Union. The Union contends that the language in the agreements
has worked well for the parties for the many years prior to the implementation of
the new County policy regulating usage. There was no evidence of abuse or problems
under that language until the County instituted its new policy in 1989, and there
still remains no evidence of abuse. However, problems with the application of the
policy to the language has resulted in numerous denials and hence, numerous
grievance arbitrations. The Union contends that although the County revised the
policy in March of 1991 in order to make it consistent with the outcome and
rationale of the Burns Awards, there continues to be problems with the
implementation of the policy. The Union believes that the policy is the cause of
the problems. It asserts that the County is attempting to renegotiate the language
of the family illness/sick leave provisions through the grievance procedure. The
Union seeks to bring closure to the issue so as to avoid further abuse of the
arbitration procedures and the use of Commission staff arbitrators as permanent
umpires to settle disputes that did not occur prior to the implementation of the
policy. As there were no problems under the contract language prior to the
implementation of the new policy, the problem is the policy and not the contract
language. Hence, it should be disallowed as a violation of the respective
agreements.

In its reply brief, the Union disputes the County's claim that the
implementation of the policy was to ensure uniform application among all County
employes. The record clearly demonstrates that the language was uniformly applied
before the adoption of the policy and that since its adoption, there has been
inconsistent and unequal application resulting in numerous grievances. The Union
concludes that the County is simply attempting to reduce a contractually-provided
fringe benefit.

With regard to the County's assertion that it has repudiated any past practice
of granting sick leave for "certain uncomplicated illnesses of a child (flu, sore
throat)", the Union asserts that the County is either inappropriately applying well-accepted
principles of labor relations or knowingly attempting to negotiate new
language through arbitration. The Union notes that there are two principal
applications of past practices accepted in labor relations. The first is where the
contract is silent on a particular issue and a benefit has accrued to employes
through a mutually-acceptable, long-standing and unequivocal practice. That type
of practice may be terminated by an employer by notice to the union during the
course of negotiations on a new contract. The benefit must be incorporated in the
new agreement or it is lost. The second application of past practice is where the
contract language is ambiguous, but has been consistently interpreted in a
particular way by the parties. That is the case in this instance. The Union
asserts that type of past practice cannot be simply erased by mere repudiation
during the course of negotiations. According to the Union, it is universally
recognized that in that case a party seeking to alter the meaning of the ambiguous
language will have to obtain language clarifying it in negotiations. Repudiation
alone will not change the meaning of the ambiguous provision, nor would it detract
from the effectiveness of the practice. Citing, Mittenthal, Past Practice In
the
Administration of Collective Bargaining Agreements, Proceedings of the 14th Annual
Meeting of the NAA, 30, 56 (BNA Books, 1961). The Union also cites Elkouri and
Elkouri, How Arbitration Works, (6) for the principle that arbitrators use custom or
past practice of the parties to interpret ambiguous contract language and that that
purpose is so common that no citation of arbitral authority is necessary.

The Union asserts that the term "serious illness" is an ambiguous one. The
Union cites the following definition of ambiguous contract language:

"The test most often cited is that there is no ambiguity if the
contract is so
clear on the issue that the intentions of the parties can be determined using no
other guise than the contract itself. The test borders on tautology, however, for
it comes perilously close to a statement that language is clear and unambiguous if
it is clear on its face. Perhaps a better way of putting it would be to ask if a
single obvious and reasonable meaning appears from a reading of the language in the
context of the rest of the contract. If so, that meaning is to be applied." (7)

. . .

In that regard, the Union takes issue with the County's assertion that the language
is clear and unambiguous. Arbitrator Burns concluded that the language was "neither
clear nor unambiguous". She stated that she was "persuaded that the term 'serious
illness' is ambiguous". Further, the County contradicts itself in this regard when
it argues that during the 1988 contract negotiations "both the County and the Union
had recognized the need to clarify the existing contractual language." There was
no change made in the language in 1988 or since. Hence, the language is no more
clear now than it was then.

The Union also contends that the County ignores the impact of the Burns Awards
interpreting this very same contract language, even though these are clearly the
most precedental awards impacting on these cases. It also asserts that the County
selectively cited from Mittenthal with regard to past practice and failed to cite
the situation applicable here, i.e., where past practice is used to clarify
ambiguous contract language.

The Union questions the County's reliance on the "zipper clause" in the
Courthouse Agreement and its application in a prior award in that unit and contends
it is misplaced. In that case the contract was totally silent on the provision of
the benefit in question. The case also involved the Courthouse Agreement, which
does not contain a "Maintenance of Benefit" provision as do the agreements in the
Social Services Department.

Also with respect to the Burns Awards, the Union asserts that the parties are
asking the Arbitrator in this case to better-define the term "serious illness".
Although some direction was afforded in the Burns Awards, the fact that so many
unresolved cases have arisen since suggests that further problems remain. The Union
notes that Arbitrator Burns found that there were past practices which were
applications of the contract language and practices that were contrary to what she
termed the "plain language" of the Agreement. The Union asserts that the past
applications of the contract were left up to the employe with the understanding and
expectation that the benefit would not be abused. That such confidence and trust
was assumed in a responsible manner by the employes is demonstrated by the fact that
there is no evidence of abuse. The Union also asserts that in the prior award, the
Arbitrator, while finding application of the language was liberal, still chose to
accept the use of dictionary definitions to aid in the interpretation of the
language. She concluded that the term "serious illness" was intended to be applied
in "circumstances in which a family member's poor health, sickness or disease gave
rise to concern or which is dangerous." The Union questions which illnesses will
be considered a "cause for concern". It notes that a parent would have cause for
concern about almost any health matter involving their children or a spouse. It
also questions who is to make that determination. Historically, it has been the
employe. The Union accepts the reasoning that the County's repudiation would cover
illnesses that were clearly not "serious", such as a runny nose, hangnail, or other
such clearly minor ailments. Citing Arbitrator Burns' "cause for concern" standard,
the Union concludes that Arbitrator Burns intended that the liberal application of
the language continue, but without the "automatic" approval that was the case in the
past. The fact that the language was applied in the past as to make it rather
automatic, suggests that there was no perceived need or desire on the County's part
to second guess the judgments of employes concerned about the health or well-being
of their families. There was instead, clearly a bias in favor of the reasonable
judgments of the employes. The Union contends that Arbitrator Burns did not intend
to change that application; rather, she was concerned with the "automatic" approvals
that have been granted in the past and which were inconsistent with any reasonable
interpretation of the language, regardless of how ambiguous it might be.

The Union concludes that the situations involved in these cases clearly met
and exceeded Arbitrator Burns' "cause for concern" standard. The Union does not
dispute that one impact of the Burns Awards is that the County can now request and
consider information regarding the nature of the particular illness, however, it
asserts that Arbitrator Burns intended that the benefit of the doubt should still
strongly be inclined towards the best interests of the health and welfare of the
employes' families.

With regard to the Myszka grievance, the Union asserts that Myszka believed
that her presence was necessary to provide transportation as well as the necessary
home care for her husband on the day he had arthroscopic surgery on his knee. Her
husband was operated on under a general anesthetic and people have been known to
have died as a result. It is also not terribly uncommon for there to be "crucial
and/or immediate decisions" asked of immediate family members when something goes
wrong while a patient is under a general anesthetic. Further, driving to and from
the hospital after being under general anesthesia is strictly forbidden due to the
drowsiness that results, and an injured knee itself would likely preclude driving.
With regard to the County's argument that the husband could have called a cab, the
Union questions how he would have been able to make it unassisted from the house to
the cab. The Union asserts that it is just such circumstances as involved here that
were envisioned by the contract language framers when they included "where the
immediate family member requires the constant attention of the employe."

The Union asserts that almost any surgery is a serious matter and is certainly
a cause for a loved one's concern. Here, there clearly was a family illness which
meets the "cause for concern" standard cited by Arbitrator Burns in her award. The
Union questions whether the parties must now "split hairs" with respect to the
relative severity of the surgery. Both Arbitrator Burns and those who negotiated
and historically have applied the respective agreements' language clearly intended
that such instances be covered by the language in question.

The Union also contends that it is significant that on at least three
occasions, two of which occurred after the receipt of the Burns Award, employes have
been permitted to use sick leave under the family illness provision to care for
family members who had outpatient surgery. First cited is the instance involving
an employe named Tucker who was allowed to use sick leave to accompany her sixteen-year
old daughter for plastic surgery in August of 1988. The two other instances
occurred after the receipt of the Burns Award, and the first of those involved an
employe named Drengler who accompanied his nine year old son for outpatient surgery
on his leg. Although that involved the removal of a cancerous growth, the Union
questions what would have been the outcome if it had not been malignant and
questions whether the parties need to wait for the result of a biopsy to determine
whether there was cause for concern. The second instance occurring after the
receipt of the Awards involved identical circumstances as the Myszka case. There
an employe in the Courthouse Unit, Henkelmann, was allowed to use sick leave under
the family illness provision in late March of 1991 to attend to her husband who had
arthroscopic surgery on his knee. That was shortly after the receipt of the Burns
Award and two weeks after the Grievant, Myszka was denied usage for the very same
illness. Although Karger, the Personnel Director, testified that was a "mistake",
the Union questions how such a mistake could have been made so soon after the
receipt of the Burns Award and while the County was already heading to arbitration
on an identical case.

In its reply brief, the Union questions the County's claim that arthroscopic
knee surgery is a "fairly routine procedure", asserting there is no evidence to
support that claim. The Union also notes the County's failure to address the
Henkelmann circumstances which occurred two weeks after Myszka's request was denied.

With regard to the grievances of Deborah Kurth, the Union notes that both
grievances involved Kurth's request to take time off from work to accompany her
eight-year old son to the doctor when the child was suffering from the "severe pain
of an ear infection." The Union notes that Kurth, having read Arbitrator Burns'
award involving her previous unsuccessful grievance, provided the County with a
letter from her child's physician stating that the illnesses suffered by the child
on the days in question were a "cause for concern." That should have been the end
of the dispute in these cases. In doing so, Kurth was attempting in good faith to
apply the judgments of the Arbitrator and her doctor to aid her in the determination
of whether she should be permitted to use sick leave in these instances. The
County's conduct seems to indicate that it does not care what an arbitrator or a
doctor says and that it will make all determinations. The Union questions the
County's having medically untrained individuals second guess the judgment of the
child's doctor and asserts there is no diagnostic or medical basis for the County's
determination. The Union notes that it presented Union Exhibit No. 1, a medical
document provided by the Pediatric Department of Wausau Medical Center, which
labelled ear infections as a "potentially serious disorder". That document
indicates that if an ear infection is left untreated, it can result in permanent
hearing loss and impair a child's learning capacity. That document was offered
during the grievance procedure as well.

The Union also asserts that in March and May of 1990, following the County's
alleged repudiation of the past practices and the implementation of its original
policy on the use of sick leave for family illness, the County allowed employe
Boettner to twice use sick leave to care for children with ear infections. Thus,
there is no basis for the County's refusal to grant the two grievances in Kurth's
cases.

In its reply brief, the Union asserts that the County questions Kurth's
allegations that the illness involved an emergency and asserts that there is no
requirement in the contract language that family illness be for emergencies. The
Union notes that the contracts involving the Social Services Department employes do
not contain the "child breaks arm" example that could even arguably suggest an
emergency situation. The Union also asserts that it's possible the doctor was
unable to see the child until 12:30 p.m., as appointments are commonly difficult to
schedule at such short notice. Further, the questions of whether this was an
emergency and whether there was a delay in scheduling the appointment have not been
raised until the County's brief.

With regard to the grievances of Renee Gibson, the Union notes that in the
first instance, September 24, 1990, she requested to use two hours of sick leave and
in the second instance, January 21, 1991, she requested to use 1 1/2 hours of sick
leave for the purpose of accompanying her 11 year old daughter to the child's
physician. In the first instance, the child was suffering from bronchitis and
sinusitis and in the second instance she had a severe viral infection. The Grievant
provided the County with communication from her daughter's doctor that indicated the
viral infection was "severe" and that on both occasions the "mother needed to
get
off work to bring the child to the office and should be with her child when the
child is sick."

The Union asserts that in determining whether the viral infection qualified
as a "serious illness" deference must be accorded to the medical professional for
making such determinations. If a pediatric physician describes the nature of a
child's illness as "severe", there should be no doubt that such a determination
qualifies the illness as "serious" and that it would also be of such a nature that
it would be a "cause for concern" of the parent. The Union notes that the Personnel
Director, Karger, is not a medical doctor. Karger inaccurately identified the
illness in his denial of the grievance as a "visual" infection rather than a viral
infection. This suggests that the County was not properly considering the true
nature of the child's illness and that Karger underestimated the potential
seriousness of the illness. People have died from viral infections. In this case,
the doctor described the infection as severe. Thus, it was clearly a serious matter
and appropriately a cause for the parent's concern.

County:

The County takes the position that its decisions to deny the use of family
illness leave in these cases and the others before the Arbitrator were properly made
under the contract language in the agreements and under the policy adopted by the
County to ensure uniform application of the family illness language to all County
employes. It is also the position of the County that the prior arbitration awards
(Burns Awards) constitute resjudicata on the issue of the
termination of the past
practice regarding the granting of the use of sick leave to employes' off due to a
family illness.

In support of its position that it did not violate the Agreements by denying
the use of family illness leave in these instances, the County first argues that the
language of the Agreements pertaining to family illness leave is clear and
unambiguous, and that the Grievants were not entitled to use family illness leave
under that clear contract language. In that regard, it is well-established under
arbitral precedent that clear and unambiguous contract language must be given
effect. Past practice cannot be used to modify or amend such clear language. The
County also cites case law for the proposition that an arbitrator is without
authority to ignore or amend clear and unambiguous contract language. Also cited
is Article III, Grievance Procedure, which provides, in relevant part, that the
"Arbitrator shall not modify, add to or delete from the express terms of the
Agreement." In addition to that limitation on the Arbitrator, the County also cites
Article 29, Entire Memorandum of Agreement, of the Agreement, which expressly states
that any amendment to the Agreement must be made in writing and executed by both
parties. In light of the arbitral law and contractual provisions, the language of
the family illness leave provisions applicable to these disputes is clear and
unambiguous and the past practice is totally irrelevant.

Next, the County asserts that under the clear language of the family illness
leave provision the Grievants were not entitled to family illness leave. In that
regard, the County cites dictionary definitions of the words "serious" and "illness"
used in that contractual provision as establishing that the parties intended that
employes would only be entitled to utilize family illness leave in cases where a
family member's "poor health, sickness or disease. . .(is of). .. concern or (poses
a danger) to the family member's continued health." That conclusion is supported
by the example given in Article 13, Section E, of the Courthouse Agreement, of a
child breaking an arm on the playground. Minor ailments and conditions are not
covered by the provision and all of the grievances, including the grievances in
these cases, consist of minor, routine ailments. Clearly, none of them are serious.
The County also asserts that another element to be satisfied in order to qualify for
family illness leave is that the family member must require the employe's "constant
attention". The prior decision of Arbitrator Burns is cited in that regard.

Regarding the Myszka grievance, the County asserts that she requested to use
family illness leave to transport her husband to and from the hospital and to attend
his needs after he was sent home. This hardly constitutes a "serious" illness"
within the meaning of Article 14, Section D, of the Agreement, nor did it require
her "constant attention". Arthroscopic knee surgery is "fairly routine" and does
not fall under the realm of considerations for the appropriate use of sick leave.
Hence, Myszka was not entitled to family illness leave under the Agreement. As to
the Union's argument that people have died as a result of general anesthesia, and
as a result of either hemorrhaging or infection relating to the most minor
surgeries, the County asserts that the Union is not addressing the primary concern
of the Grievant in this case. The request for family illness leave in this case was
to transport Myszka's husband to and from the hospital and to attend his needs at
home. The County also takes issue with the Union's comparison with this situation
to that of the employe Tucker, who was permitted to accompany her 16-year old
daughter for plastic surgery, and to that of Lee Drengler, who was allowed to take
his nine-year old son for surgery on his leg. Those cases concerned young children
who needed the assistance of their parents. That is not the case with Myszka, who
requested leave to be with her husband. The County, in considering whether to grant
family illness leave, always takes the age of the family member involved into
consideration.

With regard to Kurth's grievances, the County asserts that her requests for
family illness leave in September and December of 1990 were based upon her statement
that her eight-year old son had an ear infection. This hardly constitutes a
"serious illness" within the meaning of Article 14, Section D, of the Agreement.
The County questions the indication on Kurth's request form of September 26, 1990
that there was an emergency. If it were an emergency situation, as she indicated,
why did it take her until 12:30 p.m. to take the child to see a doctor. The County
opines that young children often develop earaches and infections and asserts that
it would be inconceivable for an earache that started at 12:30 a.m. to develop into
a "serious illness" by 12:30 p.m. The County also asserts that the note from
Kurth's doctor dated March 15, 1991 stating that her child's illnesses on September
26, 1990 and December 19, 1990 were "cause for concern", provides no information
that would lead one to believe he had a serious illness. In its reply brief, the
County questions the effectiveness of such a belated note from the doctor and
asserts that it is superfluous at best. The County also disputes the Union's
comparison with the Boettner case in 1990 where the County granted family illness
leave based on the fact that the child had a double ear infection and measles. That
child was very ill and required the constant attention of the parent, while the same
was not true in Kurth's case.

With regard to the Gibson grievances, the County notes that she requested the
use of sick leave in September of 1990 when her child had bronchitis and sinusitis
and again in January of 1991 when the child had a viral infection. She also
requested to use leave in October of 1990 because her child was experiencing
headaches and dizziness thought to be due to a reaction from medication and that
request was eventually granted due to the severity of the apparent reaction. The
County asserts that the other two occasions did not constitute a "serious illness"
as provided in the Agreement. The County disputes any reliance on the doctor's
statement that Gibson obtained as being "totally irrelevant in that the issue is not
whether she should have time off to take her daughter to the doctor, but rather
whether she should be allowed to use sick leave to take her daughter to the doctor
in a situation that does not constitute "serious illness." It further asserts that
there is nothing in the doctor's note that would lead one to believe that the
child's illness was of a serious nature. Hence, Gibson was not entitled to family
illness leave under Article 14, Section D, of the Agreement. In its reply brief,
the County notes the typographical error of "visual" rather than "viral" in the
denial and asserts that it was fully aware that Gibson's child had a viral
infection.

The County states that it is not suggesting that employes should not be
allowed to attend to their families' needs where circumstances warrant such
assistance, rather the County is merely delineating those that qualify for family
illness leave under its policy and those which do not. It notes that other personal
time off is available to employes who feel the need to take that time from work.

With regard to the Union's contention that there is a binding past practice
that requires the County to grant family illness leave in these instances and the
others, the County contends that arbitral principles and the evidence in this case
demonstrate that no such binding past practice exists. It is well established under
arbitral principles that in order to constitute a binding past practice the practice
must be (1) unequivocal; (2) clearly enunciated and acted upon; and (3) readily
ascertainable over a reasonable period of time as a fixed, and established practice
accepted by both parties." Of those elements, arbitrators have consistently
recognized that the most essential is "mutuality". Both parties must have mutually
agreed to the practice and it must have been understood by them that the practice
would be continued without change. A procedure unilaterally and voluntarily
implemented by an employer as a result of mere happenstance, operational necessity
at the time, or generosity, is not binding. The County also reviews the testimony
of various witnesses and concludes from that testimony that the reasons for granting
sick leave to the employes in those cases were all far more serious than those
identified in the instant grievances. There is not a general pattern that shows
employes were allowed to take a day off on any occasion to attend to a sick child.
Rather, testimony shows that the employes were allowed to use sick leave to attend
a family member in instances where that member was experiencing serious illness or
injury that required consideration by the employer of the needs of the family member
or instances where the employe was given sick leave time off to pick up a child from
a child care provider because the child was sick and should not be with other
children. Such is not the case in these instances or the other grievances. The
County also asserts that the instances testified to by the Union's witnesses that
occurred prior to the termination of any alleged practice by the County on September
5, 1989, cannot be relied upon to find a past practice.

The County also contends that it terminated any alleged past practice with
regard to usage of family illness leave. Citing Elkouri and Elkouri, How
Arbitration Works (Fourth Ed. 1985) the County asserts that under arbitral
principles, it is well recognized that an employer may properly repudiate a past
practice by giving notice to the union of its intentions not to carry the practice
over to the next agreement. After such notice is given, it is incumbent upon the
union to have the practice written into the agreement in order to prevent its
discontinuance. The County asserts that it has properly repudiated any past
practice by providing such notice to the Union prior to the expiration of the
parties' 1988 Agreement. This occurred during the parties' negotiations for a
successor agreement. When the County and the Union in this case signed their 1989-90
agreement, the Union was aware at the time of the County's repudiation of the
alleged past practice in November of 1988. The Union had not requested a revision
to the agreement or assurances that the alleged past practice would continue under
the new agreement. In July of 1989 the County's Personnel Director notified the
Union's representative that effective September 5, 1989, the County would implement
its new policy regarding family illness leave usage. The Union took no action in
regard to the notice other than to accept the County's liberalization of its
vacation usage policy that accompanied the change in the family illness leave usage.
Thus, the County properly repudiated the alleged past practice. The Union was given
notice of the repudiation prior to expiration of the prior agreement and at that
time had the duty to negotiate the practice into the successor agreement if it was
to continue.

The County also cites Article 29, Entire Memorandum of Agreement, in the
Agreement, normally referred to as a "zipper clause", and asserts that under
arbitral principles it is well established that such clauses are enforceable. When
agreed to, a zipper clause nullifies any past practice existing outside the written
agreement. In that regard, the County cites Elkouri and Elkouri and various
arbitration awards where practices were found to be unenforceable in light of such
clauses. The County also cites a prior arbitration award involving Article 29 where
the arbitrator held that its existence nullified an alleged past practice existing
outside and prior to the execution of the agreement. Thus, by agreeing to Article
29, the parties intended to nullify any prior practices existing outside the
Agreement, and intended that their entire Agreement as to the terms and conditions
of employment of the employes in the bargaining units was to be embodied within the
written agreement. That provision nullifies any past practice existing outside and
prior to the execution of the respective agreements, including the family illness
leave usage, upon which the Union relies.

In its reply brief, the County contends that the doctrine of resjudicata
precludes the unions from relitigating those issues previously determined by
Arbitrator Burns in the prior awards involving family illness leave usage. Under
that doctrine, once a claim or cause of action has been adjudicated and a judgment
rendered on its merits, the same matter cannot be raised in a subsequent action
between the same parties. Citing, Restatement (2nd) of Judgments
Sections 24, 25
and 27 (1982). The County also cites case law as holding that the doctrine of
resjudicata bars arbitration of a second grievance concerning the same parties,
issues,
and material facts as the prior award. Citing, Elkouri and Elkouri, How
Arbitration Works, 1985-87 Supplement, pages 93-94. The County asserts that the
doctrine of resjudicata applies in this case as there is an identity of
parties,
issues and material facts with the prior awards. In fact, the Unions introduced the
same evidence in the hearing in these cases as was submitted to Arbitrator Burns in
the prior arbitration proceedings in an attempt to relitigate the same issues
determined adversely to the Union by Arbitrator Burns. Those issues include the
existence of an alleged past practice under the family illness leave provision
pursuant to which employes were "automatically" entitled to family illness leave
regardless of the severity of the family member's illness. Those issues were
determined in the prior awards, and the Union should not be permitted to relitigate
those issues now. The County also cites Article 3, Grievance Procedure, Section B,
Arbitration, subsection 3, of the Agreement as providing that an arbitrator's award
is to be "final and binding on both parties." Thus, the Arbitrator should abide by
that language and proper precedent to hold that the Burns Awards are binding as to
the status of any alleged past practice in this regard.

The County reiterates many of its initial arguments including its assertion
that the clear language of the family illness leave provision requires that the
grievances be denied, and that the Union cannot rely on past practice to support its
interpretation of the agreements, since that practice was properly repudiated by the
County. The County also contends that the prior Burns Awards support its
interpretation of the Agreement by holding that "the County could now consider the
nature of the particular illness in order to determine the relative severity of the
affliction." It asserts that the Union's reliance on the term "cause for concern"
excerpted from the prior Burns Awards cannot be the sole criterion used to determine
eligibility for family illness leave. The term is simply too broad and subject to
employes making boldface statements that any illness is cause for concern.

The County also contends that the Union's challenge to the County's policy
fails when considering the Agreement as a whole. The County cites the Management
Rights Clause in the Agreement which provides in Section B that the County has the
right to "establish reasonable work rules." Similarly, the Arbitrator does not have
the authority to direct the County to abolish its policy as requested by the Union.
The County cites the grievance procedure which specifically provides that "the
Arbitrator shall not modify, add to or delete from the express terms of the
Agreement." The County asserts that it is not attempting to circumvent the
negotiation process, but is rather trying to establish a uniform method of handling
requests for family illness leave that will be fair to all employes.

The County also disputes the Union's interpretation of the Burns Awards,
asserting that the Union inaccurately analyzes those prior decisions and
inappropriately attempts to "second guess" the Arbitrator. The County then quotes
the following from Arbitrator Burns' Award:

Had the parties intended family illness leave to be available for all
family
illnesses, the parties would not have used the modifier "serious". Clearly, the
County is contractually entitled to consider the nature of the family member's
illness when determining whether or not to grant an employe request for family
illness leave. To require the County to continue the past practice of granting
family illness leave automatically without any consideration of the nature of the
illness would be to deny the County a clear contractual right. (Emphasis added).

The County concludes from the above that it has the authority to consider the
specific nature of each illness in determining whether to grant family illness
leave.

DISCUSSION

The Union has raised the issue of whether the County's policy regarding the
use of sick leave for a family member's illness violates the parties' Agreement.
The County asserts the Arbitrator has no authority to order the County to change or
abolish its policy. While the County indeed has the right, under the Management
Rights provision, to establish "reasonable work rules", it is noted that right must
be exercised "consistently with the other provisions of the contract." The
undersigned, however, has reviewed the County's "Statement Regarding the Use of Sick
Leave For Family Illness" and notes that the opening paragraph includes the
statement that "The following principles are to be used by Department Heads in
interpreting this language and allowing the use of sick leave for family illness."
It appears from that statement that the "policy" is intended as a directive to
management as to how the family illness leave provision is to be interpreted and
applied. Thus, beyond being a guide to management, and putting the Union on notice
that management is now interpreting the provision contrary to prior practice, it has
no application or binding effect upon the Union or the employes. Similarly, it is
management's actions that are subject to review by the Arbitrator in the context of
compliance with the parties' Agreement, and not the County's internal policies
reflecting its view of what the Agreement provides. For those reasons, the
Arbitrator declines to review the policy beyond how management applied it in these
cases.

With regard to the stipulated issues, the first question that is raised is the
effect to be given the Burns Awards. The Arbitrator is in agreement with the
following statement from Elkouri and Elkouri (8) that a prior award involving the
same parties and the same issues will be controlling on those issues:

Although prior labor arbitration awards are not binding in
exactly the same
sense that authoritative legal decisions are, yet they may have a force which can
be characterized as authoritative. This is true of arbitration both by permanent
umpires and by temporary or ad hoc arbitrators.

Giving authoritative force to prior awards when the same
issue
subsequently
arises (staredecisis) is to be distinguished from refusing to permit
the merits of
the same event or incident to be relitigated (resjudicata). Where a
new incident
gives rise to the same issue that is covered by a prior award, the new incident may
be taken to arbitration but it may be controlled by the prior award. The destiny
of a party's claim thus may be governed by a prior award which either precludes the
claim under resjudicata concepts or controls the decision on the
claim by staredecisis concepts. In some instances arbitrators likewise have made the prior
award
the governing factor by application of a third judicial concept, collateral
estoppel, which stands somewhere between the concepts of resjudicata and staredecisis (collateral estoppel also overlaps somewhat with resjudicata and, in a
sense, with the authoritative precedent area of staredecisis).
However, regardless
of whether the arbitrator speaks in terms of resjudicata, collateral
estoppel, or
staredecisis, ordinarily the prior award by some procedure will
have been the
governing factor in the disposition of the present claim.

(421-22)

. . .

Prior awards may also have authoritative force where
temporary
arbitrators are
used. An award implementing a collective agreement usually becomes a binding part
of the agreement and will be applied by arbitrators thereafter.

This was emphasized by Arbitrator Whitley P. McCoy, who
declared that where
a "prior decision involves the interpretation of the identical contract provision,
between the same company and union, every principle of common sense, policy and
labor relations demands that it stand until the parties annul it by a newly worded
contract provision."

(425-26) (Citations omitted)

Hence, the Burns Award involving the County and Local 2492 is deemed to be
conclusive both as to alleged existence of a binding past practice and as to the
meaning of the term "serious illness" in the Family Illness provision.

With regard to a past practice, the Union reiterates its claim that there is
a binding past practice that the family illness leave provision is to be liberally
applied. The Union makes a number of clever arguments regarding the proper
interpretation of the Burns Award to support its claim. The arguments are not
convincing, however, in light of the express statements in the Burns Award.
Arbitrator Burns found that, although the term "serious illness" was ambiguous, the
County had successfully repudiated the past practice regarding the use of sick leave
for family illness:

The undersigned is persuaded that, prior to the execution of
the
current
collective bargaining agreement, the County granted family illness leave
automatically upon request of the employe without any consideration of the nature
of the illness. Since the County granted family illness sick leave automatically
without any consideration as to the nature of the illness, there is no past practice
which demonstrates a mutual intent with respect to the meaning of the term "serious
illness".

Had the parties intended family illness leave to be available
for
all family
illnesses, the parties would not have used the modifier "serious". Clearly, the
County is contractually entitled to consider the nature of the family member's
illness when determining whether or not to grant an employe request for family
illness leave. To require the County to continue the past practice of granting
family illness leave automatically without any consideration of the nature of the
illness would be to deny the County a clear contractual right. As discussed
supra,
the County's conduct was sufficient to repudiate any past practice which was
contrary to the clear contract language.

(pp. 16-17)

Thus, although she held that the term "serious illness" is not clear and
unambiguous, Arbitrator Burns concluded that the contract was clear that sick leave
was not available for all types of family illness, and that the past practice was
contrary to the County's contractual right to consider the nature of the illness
and, as such, was not indicative of a mutually-accepted interpretation of the term
"serious illness".

In defining the term "serious illness", Arbitrator Burns concluded the
following:

As the County argues, in the absence of evidence to the
contrary, an
arbitrator may reasonably assume that parties to a collective bargaining agreement
intended a word to be construed in a manner which is consistent with the word's
common and ordinary definition as established in a reliable dictionary. The County,
relying upon the Webster's New World Dictionary definition of the word
"serious",
i.e., "giving cause for concern, dangerous" and of the word "illness",
i.e., "the
condition of being ill, or in poor health, sickness, or disease", argues that the
application of the common and ordinary definition of the phrase "serious illness"
leads to the conclusion that the parties intended family illness leave to be used
in circumstances in which "a family member's poor health, sickness or disease is of
vital concern or poses a danger to the family member's continued health."

The undersigned notes that the definition of the word
"serious"
relied upon
by the County is "giving cause for concern, not "giving cause for vital
concern".
Thus, if one were to define the term "serious illness" by combining the definition's
relied upon by the County, one would conclude that family illness leave was intended
to be used in circumstances in which "a family member's poor health, sickness or
disease gave rise to concern or which is dangerous". By inserting the word "vital",
the County has exaggerated the nature of a "serious illness". (p. 17)

It will therefore be necessary to determine in each of these instances whether
the immediate family member's illness or injury "gave rise to concern" or was
"dangerous" to that person's continued health, so as to constitute a "serious
illness". Arbitrator Burns went on to note that Article 14, Section D, of the
Agreement also requires that it be a serious illness of an immediate family member
that requires the constant attention of the employe. All of the situations in these
cases involved members of the respective employe's immediate family, however it will
be necessary to determine whether each situation involved a "serious illness" as
defined above, that required the employe's "constant attention". In each case, the
employe was permitted to take time off from work to deal with the situation, so that
it is not a matter of deciding whether the employe may take off from work to care
for an immediate family member, rather it is whether they are entitled to use sick
leave for that purpose.

Considering first the Myszka case, the evidence indicates that Myszka
requested to use sick leave under the family illness provision to take her husband
to and from the hospital and to attend to him at home on the day he had outpatient
arthroscopic surgery on his knee. The Union points out that Myszka's spouse likely
could not walk to and from the vehicle unaided or drive and the fact that he was put
under general anesthesia for his surgery. The County asserts it is a "fairly
routine procedure" and hardly constituted a "serious illness", nor did it require
the employe's "constant attention".

Neither party cited any specific evidence to support their claims in those
regards and both appear to rely on the general knowledge that what they say is
widely known to be true. It seems appropriate to the undersigned in this instance
to take notice of the fact that a person who has undergone arthroscopic knee surgery
while under a general anesthetic would not be capable of walking to a vehicle
unaided following the surgery that day or of safely driving home, as well as the
fact that arthroscopic knee surgery has become a fairly routinized surgical
procedure. The latter, however does not necessarily mean that such surgery is not
to be considered "serious". The surgical procedure may be routine, but there are
significant after-effects of such a surgery and the general anesthetic that leave
the person temporarily unable to take care of him or herself - the resulting pain
and shock to the body, as well as the inability to use the affected leg and the
drowsiness and nausea from the general anesthetic that can take several hours to
wear off.

The undersigned concludes that a surgical operation that requires that the
person be put under a general anesthetic is "serious", both in terms of the
potential danger and the after-effects of the anesthetic and the nature of the
operation. It is further concluded that a person who has just undergone
arthroscopic knee surgery and is recovering from the general anesthesia, is
sufficiently in need of someone else's care that first day so as to require the
employe's "constant attention". Having reviewed the instances where the County has
granted the use of sick leave for a family illness since the practice was
repudiated, the undersigned concludes that the parties have not intended or
construed "constant attention" to mean it is necessary for the employe to keep a
constant vigil by the family member's bedside. Rather, if the family member's
condition is of a nature that the person is incapable of caring for himself or
herself and leaving the person alone would present a danger to that person, that is
sufficient. (9)

The Arbitrator notes the Union's reliance on the County's having allowed an
employe in the Courthouse Unit to use sick leave under the same circumstances. Such
reliance is misplaced, as the labor agreement covering that unit has an additional
paragraph under the Family Illness provision, not found in the Agreement covering
the two units of employes in the Social Services Department, that expressly provides
"This provision shall apply to all other requests for sick leave involving requests
relative to surgery." (10)

With regard to the Kurth grievances, both involve her taking her eight and a
half year old son to the doctor. The first instance was due to his having an
earache and the child was treated with antibiotics for an ear infection. In the
second instance the child again had an earache and Kurth took him to the doctor and
then returned to work. The Union cites the description and explanation of otitis
media, i.e., inflammation of the middle ear caused by a bacterial or viral
infection, provided by the Wausau Medical Center (Union Ex. No. 1) and the note from
the child's doctor (Joint Ex. No. 5-I) as supporting its claim that an ear infection
qualifies as a "serious illness", in that there was "cause for concern".

While an ear infection can be a "cause for concern", it appears it is due to
the possible hearing loss that could result if left untreated. There are numerous
conditions that might have a more serious result if left untreated or undiagnosed.
However, as the Union argues, the initial granting of the sick leave cannot be
dependent upon the final outcome or diagnosis. If the family member's condition is
serious enough that the person needs to see a doctor and the doctor then is willing
to confirm in writing that the condition is "cause for concern", the undersigned is
hard put to second guess the doctor without more. (11) If, on the other hand, the
doctor finds that the condition is something minor, the employe must then return to
work or take another type of leave. In other words, this may result in an employe
being entitled to use sick leave to take the immediate family member to see a doctor
due to the onset or increased severity of a condition, but then have to return to
work or thereafter use other leave time if the employe chooses to stay with the
family member after the condition has been diagnosed as not being serious. That may
also be the case even if the family member's condition is "serious", where the
condition is such that it will not require the employe's "constant attention", as
that has been previously described in this award.

Applying the foregoing to the instances involving Kurth's son, it is concluded
that Kurth was entitled to use sick leave in both instances to take her son to the
doctor and back home or to the person caring for the child, but that given the
child's age and the condition, the situations were such that they did not require
her constant attention. An eight year old with an earache is usually able to carry
on in a normal manner, especially once the pain has been treated. Further, in the
first situation, Kurth's mother was already watching the child and it was not a
situation where the school or care provider called the employe at work to come and
get the child. The situation appears to be analogous to the case involving an
employe in the "Office and Technical Employees" unit, Kriewaldt, who was permitted
to use sick leave in February of 1990 to take her ten year old daughter to the
doctor where she was diagnosed as having a sinus infection (Union Ex. No. 9). As
here, the child had awakened during the night feeling ill and the employe made an
appointment the next day for the child to see a doctor, but was allowed to use sick
leave to take the child to the doctor and home and then return to work. (12)

Thus, it is concluded that Kurth was entitled to use two hours of sick leave
in each instance for the purpose of taking her son to the doctor and back home. The
County violated Article 14, Section D, of the Agreement to the extent it denied her
requests for that purpose.

The Gibson grievances essentially involve situations similar to those in the
Kurth grievances. In each instance, Gibson took her eleven year old daughter to the
doctor after she complained of aching, fever and sore throat. In the first
instance, she was diagnosed as having sinusitis and bronchitis and in the latter
instance as having a "severe viral infection." The child was prescribed medication
in each case. In each instance, Gibson requested to use sick leave to take her
daughter to the doctor and the requests were denied. Applying the same reasoning
as in the Kurth grievances, it is concluded that the County violated Article 14,
Section D, of the Agreement when it denied the requests.

Based on the foregoing, the evidence and the arguments of the parties, the
undersigned makes and issues the following

AWARD

1. The grievance of Cindy Myszka is sustained. The County is directed to
immediately grant her request to use eight (8) hours of sick leave under Article 14,
Section D, of the parties' Agreement for January 23, 1991, and to immediately
reinstate any other leave time she took in its place.

2. The grievances of Deborah Kurth are sustained to the extent she was
denied the use of sick leave on September 26, 1990 and December 19, 1990 to take her
son to the doctor and back home. Therefore, the County is directed to immediately
grant her requests to use sick leave under Article 14, Section D, of the parties'
Agreement on those dates, in the amount of two (2) hours each date, and to restore
any other leave time she took in its place to that extent on those dates.

3. The grievances of Renee Gibson are sustained. Therefore, the County
is directed to immediately grant her requests to use two (2) hours of sick leave on
September 24, 1990 and one and one-half (1 1/2) hours of sick leave on January 21,
1991 under Article 14, Section D, of the parties' Agreement, and to restore any
other leave she took in its place to that extent on those dates.

Dated at Madison, Wisconsin this 26th day of March, 1992.

By David E. Shaw /s/

David E. Shaw, Arbitrator

1/ The parties agreed to consolidate these grievances
with similar grievances in
other bargaining units for purposes of hearing the matters.

9/ This must, however, be distinguished from what
might be termed "babysitting",
where it is the family member's age, and not the illness or condition, that
requires someone be present, e.g., a five-year old child with a cold vs. a
five-year old child who is vomiting. A five-year old cannot be left alone due
to the inability of a five-year old child to care for himself or herself, yet
the child with the cold is able to go about most of its normal activities -
sleep, play in the house, watch television, etc. - while the child with the flu
requires attention and care. While age is a factor in considering the
condition, it must be the condition, and not the family member's age alone,
that occasions the need for the attention and care.

10/ Joint Ex. No. 1, Article XIII, Section E.

11/ The undersigned is fully cognizant that there are
numerous circumstances where
a doctor would be willing to say that due to potential serious results if a
condition is left untreated.

12/ The situation is not analogous to the Boettner
cases cited by the Union, as
they involved an infant with additional complications.